KEARNY Town voters may not have the final say when it comes to choosing who will occupy a seat on the local Board of Education for a three-year term beginning in January.

In a 5-4 decision, the board voted last week to challenge Deborah Lowry's right to fill the seat on the board she was elected to in November.

A majority faction on the BOE contends that Lowry, a retired Kearny school administrator, is ineligible to hold the seat because the annual payments she receives for unused sick time translate into an existing contract with the board, creating a conflict of interest.

As evidence, they point to a 2008 case in which a candidate for the Toms River Board of Education was forced by the courts to withdraw his candidacy because he was retired and receiving similar payouts for unused sick time.

Voting to file the petition of appeal were board president George King, vice president Paul Castelli, and board members John Plaugic, John Leadbeater and Robert O'Malley. Voting against the measure were James Doran Jr., an incumbent who was re-elected to his seat on a ticket that included Lowry, Bernadette McDonald, Lisa Anne Shalago and Sebastian Viscuso.

Lowry supporters contend the board majority knew of the alleged conflict in October and did nothing to challenge the candidate and that the move is a ploy to appoint Castelli, who placed seventh in the election, to the seat to maintain their majority.

Lowry won 1,843 votes to Castelli's 743.

Some voters were also upset that Castelli voted on the measure to challenge Lowry's membership on the board, alleging that a potential conflict of interest exists because the board could select him for the open seat.

"The statute provides for anybody in town to take the seat," he noted. "In my opinion, Mr. Castelli has no more or less interest than any other member of the public."

The board plans to file a petition of appeal to hear the case with state Commissioner of Education Christopher Cerf, according to Rubin.

Lowry said she first heard of the allegation of a conflict five days after the election, when she received a letter on the matter from the board. The district's former director of elementary curriculum explained that under a collective bargaining agreement, her pay for unused sick time is distributed over five years beginning with her retirement on June 30, 2011.

To rectify the situation, she has offered to accept the full payment for her benefits before the end of 2012 or postpone future payments until her term expires on Dec. 31, 2015.

"I consider myself an honorable person and I want to follow the process. I'm trying to cure the problem," she said. "It's very transparent with this particular group that they would like to keep their majority. I'm concerned about how the vacancy would be filled as well."